Plastic Pollution Fight Goes Local as Broader Efforts Fall Short

As international and state efforts falter, state and local governments are actively taking measures to reduce plastic pollution via legislatures and the courts. Although state and local governments have been active with single-use plastic bans, upcoming legislation will likely also address two areas: microplastics and producer responsibility.

While there is currently no federal standard for microplastics in the environment, including for drinking water, California has implemented regulations for measuring microplastics in drinking water.

In 2018, the state passed a bill requiring the State Water Resources Control Board to develop a definition for microplastics and a standard for testing microplastics in drinking water. In 2022, the SWRCB adopted a policy handbook outlining a four-year plan for the testing and reporting of microplastics in drinking water, including the public disclosure of those results.

Other states have followed California’s lead, introducing or passing microplastic related laws. New Jersey and Illinois have laws requiring state environmental agencies to test for microplastics in water. A law in Rhode Island would ban the sale of products with intentionally added microplastics.

A proposed Virginia law would require the commissioner of health to convene a working group to study microplastics in drinking water. New York City has a pending bill for the Department of Environmental Protection to test drinking water for microplastics. And a 2024 New Jersey bill would require washing machines sold after 2030 to have a filtration system to capture microfibers and plastics.

Extended producer responsibility laws are another area where states have been enacting legislation. Seven states have enacted, and several others have proposed, some form of extended producer responsibility legislation for plastic.

These laws, which focus on single-use plastic such as packaging and bottles, make producers responsible for the product throughout its lifecycle, including its end-of-life, shifting the safe disposal responsibility from the consumer to the producer.

Litigation

In addition to legislation, litigation by state and city attorneys may increase as municipalities tackle a growing problem.

Plastic litigation has increased in the past five years, with plaintiffs winning judgments against plastic pellet manufacturers and shippers under the Clean Water Act and Resource Conservation and Recovery Act. In addition to claims alleging violations of federal law, expect to see claims brought in state court alleging public nuisance and consumer fraud.

Baltimore and New York State

In July 2024, the city of Baltimore sued PepsiCo Inc. and Coca-Cola Co., along with six other companies, alleging these companies used deceptive business practices and created a public nuisance with their plastic products.

According to the complaint, plastic wrappers and bottles are breaking down into micro- and nano-plastics and polluting the city’s water supply, putting Baltimore residents at risk of ingesting these plastics and associated chemicals. This public nuisance claim mirrors the claim raised earlier by the New York state attorney general in November 2023 against PepsiCo.

According to the attorney general’s complaint, the plastic pollution from PepsiCo products has interfered with “the public’s use and enjoyment of the Buffalo River and its environs, and adversely affects the aesthetic value of the river and its shoreline.”

In addition to the novel claim of public nuisance, the attorney general’s complaint also alleged deceptive trade practices for failure to warn consumers of known risks associated with single-use plastic. While the trial court dismissed this complaint in October 2024, other state attorney general claims have proceeded.

Minnesota and Connecticut

Keith Ellison, the attorney general for Minnesota, sued Reynolds Consumer Products, the maker of Hefty garbage bags, in state court in 2023.

The complaint alleges that the defendant’s garbage bags misled consumers into believing that their plastic bags were recyclable in violation of a series of Minnesota consumer protection acts. The Connecticut attorney general brought a similar case against Reynolds in Connecticut state court. The Minnesota case settled in August 2024, while the Connecticut case is pending.

California and Others

In April 2022, California Attorney General Rob Bonta launched an investigation into fossil fuel and petrochemical companies for a “decades-long plastics deception campaign.” The investigation focused on the companies’ role in perpetuating myths around recycling.

After more than two years, in September 2024, Bonta filed suit against the companies, including ExxonMobil, in state court alleging both public nuisance and deceptive trade practice claims. In late fall 2024, Ford County, Kan., and Los Angeles County filed similar lawsuits against plastic manufacturers and bottling companies alleging these firms have misrepresented the harm from plastic to the public.

Our plastic problem isn’t going away. The lack of federal action will push the conversation to local and state governments that will use legislation and litigation to work toward solving our plastic problem.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Sarah Morath is a law professor at Wake Forest University and frequently writes on plastic pollution for both the popular press and scholarly journals.

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